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Synopsis

The Madras High Court on Tuesday granted bail to Advocate M Mohammed Abbas, a practicing lawyer at the Madurai Bench of the high court, who is accused of offences under the Unlawful Activities Prevention Act (UAPA).

Abbas was arrested by the National Investigating Agency (NIA) on charges of being an important core team leader of the banned organisation Popular Front of India (PFI).

While allowing bail to Abbas, the bench of Justice M Sundar and R Sakthivel observed that no specific accusation had been leveled by the NIA against Abbas and the trial court itself had said that the question of Abbas' absconding may not arise since he is an Advocate.

"Except broad averments in the nature of suspicion of involvement of what is described as other members of 'banned terrorist organisation of PFI' in further investigation application there is no accusation with specificity qua petitioner," noted the bench. 

The bench further stated that PFI has not been listed as 'terrorist organisation' in the First Schedule of UAPA rather it has been declared vide Government of India notification as 'unlawful association.

"This means that there are effectively no Chapter IV and Chapter VI accusations with specificity qua petitioner. The sequitur, is Section 43D(5) and proviso thereat does not operate or come into play at all," held the bench. 

The bench stressed that to oppose the bail plea of an accused under UAPA, the prosecution has to show that there is prima facie material available to negative the bail plea and that the activities committed by the petitioner would attract Section 43D(5) and proviso thereat, which was absent in the present case. 

Therefore, finding that prima facie there was no reason to believe that Abbas would abscond or temper evidence, or threaten the witnesses, the bench ruled in his favour. 

The NIA arrested Abbas on May 9 this year. It was alleged that Abbas, along with others, was involved in spreading the extremist ideology of PFI including planning of unlawful acts, planning of terrorist acts, organising marches, raising of funds for committing terrorist activities, and recruitment of members for such activities.

The trial court rejected Abbas' bail plea on June 20, 2023. Thereafter, Abbas moved the high court seeking bail as well as a direction to quash the case against him. 

It was his argument that his arraying in the matter was actuated by mala fide and malice as it was solely owing to a post made by him on Facebook on March 6, 2023 about alleged mistreatment / custodial torture of an accused in the Tamil Nadu PFI criminal conspiracy case.

His counsel submitted that Abbas was not even originally named in the FIR which was otherwise also very generic. Moreover, he claimed the FIR did not disclose any specific act much less an overt act against Abbas. 

On the other hand, the counsel for the respondents argued that the allegation of malice was unfounded and in any event, on a demurrer, malice is a weak ground when it comes to a FIR quash plea.

Further, the counsel for the NIA, Special Public Prosecutor N Baaskaran, asserted that Section 43D of UAPA, under which Abbas had been charged, imposes a bar on the grant of bail.

In addition to that, Solicitor General Tushar Mehta told the Court that the NIA had adequate evidence, including an "incriminating" audio clip against Abbas.

However, the high court noted that the case diary before it did not cut ice qua proviso to section 43D(5) of UAPA as there was no specific overt act attributed to Abbas, the material recovered from Abbas at the time of search and arrest was described by him as farm/gardening equipments and there was no other material on record to state that the allegations against Abbas were prima facie true.

In conclusion, although the court refused to quash the case against Abbas, it allowed him bail on furnishing two sureties for a likesum of Rs.1,00,000 each.

Court also ordered Abbas to stay in Chennai after coming out of jail and surrender his passport. 

It is to be noted, after the pronouncing of the abovementioned order, the counsel for NIA, Special Public Prosecutor N.Baaskaran made an oral application seeking Certificate for appeal to the Supreme Court on the ground that Section 43D of UAPA requires to be interpreted by the Top Court.

The high court observed that Section 43D of UAPA has been elucidated and interpreted by the Supreme Court in a catena of case laws and it had also referred to many of these case laws in the abovementioned order. 

Therefore, the high court negatived the oral plea. 

However, the matter was mentioned before the Supreme Court today by ASG SV Raju for stay on the high court order. The top court told him that it will hear the same on Friday. 

Case Title: M.Mohamed Abbas v The State and Others